Lawfare Amid Warfare
I have referred many times over the years to a 1992 Parameters piece written by then-Colonel Charles J. Dunlap, “The Origins of the American Military Coup of 2012.” It was an instant classic and its lessons remain as important as ever.
I had presumed Dunlap had long since retired but he has been promoted to Major General and is the Air Force’s Deputy Judge Advocate General. I discovered this because he published a piece in yesterday’s Washington Times entitled, “Lawfare Amid Warfare,” arguing that we are giving our enemies an advantage by setting rules of engagement to protect civilians that go well beyond the requirements of international law.
Of course, it is not illegal to establish a policy of “zero tolerance” of civilian casualties even though the law does not require it. Doing so, however, creates unnecessary and often counterproductive results. Among other things, the unrealistic and unachievable expectations produced stimulate a sense of betrayal when such casualties occur, and — despite all efforts — they will always occur in war.
Moreover, foreclosing an attack simply because of civilians in the area may, ironically, condemn many more innocents to be victimized in a future rampage of gunfire, improvised explosive devices or suicide bombing by the terrorists that escape. Though excessive civilian losses must always be avoided, it may very well be more humane approach to kill bad guys when the opportunity presents itself even though some civilian losses may also occur.
Establishing a paradigm of “zero tolerance” for casualties may well come back to haunt us in yet another way. Specifically, it encourages the enemy to do exactly what we do not want them to do: surround themselves with innocent civilians so as to virtually immunize themselves from attack. It creates a sanctuary that the bad guys are not entitled to enjoy, and sends them exactly the wrong message.
He’s right, of course, that war requires making hard choices and that collateral damage may be the least bad option in many cases. At the same time, though, while correctly assessing the politics of failing to live up to unrealistic policies, he seems to ignore the politics of the alternative. The bottom line is that, whatever international law might allow, any innocent casualties in a counterinsurgency – counterterrorist – counterguerrilla – stability and security operation presents the enemy with a propaganda advantage.
Perhaps because he is an Air Force officer, it seems not to occur to General Dunlap that we can simultaneously “kill bad guys when the opportunity presents itself” and protect innocents by choosing a means of attack other than an air strike. Sending in a commando team can achieve both ends, owing to the more precise nature of that attack. Obviously, commandos are also more vulnerable than bomber pilots. But, as Michael Walzer and others have argued, soldiers have a duty to protect innocent lives even though it means accepting greater personal risks.
Air power, including missile strikes, are oftentimes much more effective than ground attacks. Certainly, countless thousand American soldiers and Marines lived to fight another day because of the invaluable contribution made by military aviation. That said, it has little application in COIN/SASO, where the target set is almost invariably tiny and surrounded by noncombatants.